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ANALYSIS OF AUGUST 25, 20009 CAV OPINIONS

[Posted August 27, 2009] My day job has kept me away from the keyboard for the past two days, so here is slightly-delayed coverage of Tuesday’s published opinions from the Court of Appeals of Virginia.

Criminal law
The first bit of news is the court’s decision to grant en banc rehearing of a petition for a writ of actual innocence in the Dustin Turner case, which I discussed on August 4. On that day, a panel of the court made history when it became the first to grant a writ over the Commonwealth’s objection. Now, just three weeks later (and yes, that is a pretty fast track for a PFR), the full court will take up the case. The panel opinion was split, 2-1, so there will be plenty of jurisprudential ammunition on both sides.

The next case is also the product of a rehearing, albeit not en banc: Gheorghiu v. Commonwealth was originally decided back on January 20, and you’ll find my analysis of the case here. This case involves several credit card offenses; the court had found back in January that several of the convictions were beyond appellate review because of a defect in the notice of appeal, but it later granted rehearing to consider them all. Today’s ruling mirrors the previous one, in that the convictions are affirmed (with one minor exception that will come as little solace to the appellant).

In my earlier analysis, I forecast additional review of this controversial (at least in appellate circles) ruling, and while I didn’t quite expect this kind of review, I still foresee that the Supreme Court could take a look at the matter, to determine whether venue for a criminal offense like this is as transitory a concept as the majority rules that it is.

The only original decision handed down on Tuesday is Paiz v. Commonwealth. That one involves convictions of use of a firearm while committing lynching and malicious wounding, both by mob. Paiz, the driver in a gang-related killing, was also convicted of the substantive crimes of lynching and malicious wounding, but those weren’t at issue in this appeal. (He didn’t pull the trigger, but his involvement was clearly enough to establish his culpability as a member of a mob, under the rules applicable to crimes committed by mobs.)

The question in this appeal is whether the firearms charges (as contrasted with the substantive crimes) are crimes of violence. If they are, then Paiz can be convicted even though he didn’t shoot anybody. If not, then he can’t be convicted on the theory that was advanced in the trial court. (My phrasing of the last sentence is important. The court broadly hints that if the Commonwealth had proceeded on other theories of vicarious liability below, then it might well affirm the convictions out of hand. But the prosecution only urged that Paiz was guilty because he was part of a mob that committed the acts, so that’s the only theory the CAV evaluates.)

The court turns to a statute that lists these crimes of violence. That list includes “mob-related felonies” (which includes lynching and malicious wounding by mob), but not companion firearms charges. Accordingly, Paiz can’t be convicted by virtue of his participation in a mob for those two offenses, so those convictions are reversed.

There are three probable prosecutorial responses to this ruling. The first is that the Commonwealth could appeal onward, either to the en banc CAV or to the Supreme Court. Personally, I don’t think that doing that will get the Commonwealth anywhere. This opinion was unanimous, so en banc review is very unlikely; and in my opinion, the Supreme Court probably would not touch this ruling. The second is to seek curative legislation in the 2010 General Assembly session, to add the firearms offenses to the statutory list. The third, and simplest, is for the prosecution to seek application of those other theories of vicarious (for example, principal in the second degree, or concert of action) liability in future prosecutions.